Derek “Del Boy” Trotter, the aspirational market trader in the TV sitcom Only Fools and Horses, would probably raise a proud lovely jubbly toast to his newly acquired status of “literary work” following a high court copyright ruling he would hail as cushty.
Del Boy’s status was legally defined after a company, set up by the creator of the award-winning BBC comedy, won its copyright battle with the operators of an “interactive theatrical dining experience” Only Fools the (Cushty) Dining Experience.
Lawyers representing Shazam Productions, set up by the Only Fools and Horses creator John Sullivan, who died in 2011, alleged that the operators of the dining experience company had infringed copyright in the sitcom scripts and copyright in “each of the central characters”.
Described as a “part-scripted, part improvised” dramatic performance, the dining experience’s paying customers enjoyed drinks and a three-course meal while interacting with actors playing central characters from the sitcom: Del Boy, his brother Rodney, Uncle Albert, Boycie, Marlene, Cassandra, Trigger and DCI Roy Slater.
Lawyers for Shazam, said the characters had the “distinctive character traits conceived by John Sullivan” and used their “signature phrases and ways of speaking” – including Del Boy’s mangled French.
One key issue of the case, which was heard in March, was if the scripts of Only Fools and Horses were “literary works” – which enjoy a higher standard of copyright protection – or “dramatic works”.
Lawyers for Shazam, a company owned by Sullivan’s family, had asked Judge John Kimbell to watch three episodes of the sitcom, giving him a box set for research.
In his ruling published on Wednesday, the judge said that the character of Del Boy was a literary work, and that each script of the series was a dramatic work. He also ruled there were “significant commonalities” between the sitcom scripts, and those of the theatrical dining experience that had been copied from the series, and could not be defended on the grounds of parody or pastiche.
“I do not accept that the nature of Only Fools the (Cushty) Dining Experience was so removed from Only Fools and Horses as to make it obvious that it was not associated with Only Fools and Horses,” he said.
“The similarity in the dress and appearance of the characters in the publicity material for Only Fools the (Cushty) Dining Experience, the use of the Only Fools domain name were, in my judgment, such that it was likely to cause casual observers to consider that the Only Fools the (Cushty) Dining Experience show was officially authorised and associated with Only Fools and Horses.”
Jim Sullivan, the creator’s son, had told the court he found the defendants’ show difficult to watch, not just because “it is, in my opinion, of poor quality”, but also because the defendants had “essentially written a new episode of Only Fools (albeit, in my opinion, very badly) and in doing so, have copied my dad’s work”.
Operators of the dining experience show contended that their use of the characters and materials from the sitcom did not amount to material that could be protected by copyright. They denied “passing off” – essentially tricking customers into thinking it was an officially endorsed product – on the “footing” that their show would not be seen as connected with the owners of the intellectual property in the sitcom, but as an unofficial tribute show, and questioned whether Shazam, rather than the BBC, owned goodwill attached to the name Only Fools and Horses.
In a statement after the ruling, Sullivan, a director of Shazam, said: “This case was about protecting John Sullivan’s legacy and the integrity of his work. Only Fools and Horses did not just magically appear out of thin air overnight. It took my dad decades of personal experience, skill and hard graft to create and develop an imaginary world rich in memorable characters, dialogue, jokes, plots and history.”
He added: “This legal action has taken a long time and has not for one moment been pleasant for me or my family. That said, some things are worth fighting for, and this will always be one of them.”
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